The Fight for Farmers’ Rights to Seed

The idea of farmers’ rights arose in international governance in the early 1980s, a reaction to the increased demand for plant breeders’ rights, and to ensure farmers’ continued contribution to the global genetic pool – addressing the rights not of individuals, but of entire peoples. Its purpose was also to draw attention to the unrecognised innovations of peasants that are the foundation of all modern plant breeding.

The growth of the industrial seed sector and parallel loss of peasant seed systems has not occurred through some natural or inevitable process. It’s the result of deliberate policies designed to promote an industrial seed system based on seed protected by intellectual and industrial property rights in which peasants are given little or no choice to use that seed.

The Treaty places responsibility for the realization of those rights on national governments.

In 2017, an Ad Hoc Technical Expert Group on Farmers’ Rights (the AHTEG-FR) was established to work towards the implementation of farmers’ rights established in Article 9 of the Seed Treaty. The Expert Group has a unique opportunity to contribute to the development of international norms in realizing farmers’ rights. The first meeting of the Expert Group was held in the Food & Agriculture Organisation (FAO) of the UN buildings in Rome 11-14 September 2018, with a mandate to create an inventory of national measures that support farmers’ rights and explore options to ensure more countries implement Article 9.

Membership of the Expert Group & Farmers’ Inclusion in Decision Making

The membership of the Expert Group includes government representatives from countries in all regions of the world, mostly from ministries of agriculture, and representatives from civil society, farmers’ organisations, and the private sector. Of those chosen from civil society and farmers’ organisations, only two delegates are farmers themselves (the others are NGO staff), and one of those (a Samoan farmers’ org) was apparently selected by the Australian Government.

The single peasant farmer present at the first meeting of the group is from a rural women’s organization in Mali and was there on behalf of the International Planning Committee for Food Sovereignty (IPC). Her name is Alimata, and she is a fantastic advocate for peasants and especially women in Mali and regionally and globally. However, Alimata only speaks French, and while the meeting was simultaneously interpreted in English, French, and Spanish, all documentation was provided only in English – including a 91-page synthesis report of what is happening across the world in regards to farmers’ right to seed. Further, all fresh documents created during the meeting for immediate discussion and decision making were also only provided in English. This created a serious barrier to participation of peasants in the discussions around how to implement our rights.

The meeting was a striking manifestation of how corporations control the food system.

The International Seed Federation (ISF), which represents plant breeders globally (including seed and chemical giants Monsanto and Syngenta), is a delegate on the Expert Group. The ISF delegate contributed frequently and forcefully, and virtually every contribution she made was an attempt to limit farmers’ rights rather than implement them as per the mandate. An early example includes her assertion that ‘when implementing the rights of certain groups of farmers we should not be detrimental to other groups of farmers.’ This is equivalent to suggesting that protecting the rights of women or people of colour somehow damages the rights of straight white males.

It was perhaps even more galling to watch her pass notes to the delegates representing the governments of Canada, the United States, and Australia (‘the colonialists’), apparently instructing them on many of their interventions, as well as regularly exchanging meaningful glances with the colonialists.

Canada led the charge of the colonialist governments keen to protect intellectual property (IP) rights over peasants’ rights to seed. The Canadian delegate gave a presentation highlighting the massive increase in canola production, telling the Expert Group how ‘happy’ Canadian farmers are with this lucrative GM [mono]crop, and completely ignoring the environmental costs of such ‘green deserts’.

He also spoke of how the [industrial] farmers in Canada have worked to restrict their own use of protected plant varieties ‘for the public good’ by supporting an act that protects biosecurity for the industry. And then he listed all the peak industrial farmers’ organisations with whom his office consults as an example of meeting Article 9’s right to participate in decision making – even Syngenta gets a regular audience.

The example of Canada brings up the question of which kind of farmers’ rights does Article 9 seek to protect. While it is rather farcical to get into a debate about whether industrial farmers should have rights – they already have far more rights than peasant and indigenous farmers – we, civil society, want peasant and indigenous farmers’ rights protected even in highly industrialised countries like Canada, the United States, and Australia.

Every country has a responsibility to ensure that their peasant and indigenous farmers’ rights are upheld – their rights under 9.3 to use, exchange and sell seed, and their right to participate in decision making bodies. The list from Canada of organisations did not include the National Farmers Union, for example, a group that defends the rights of small-scale family farmers contributing to agro-biodiversity. How are GM canola farmers contributing to biodiversity? Canada’s list also did not include the Assembly of First Nations nor any of the other organisations defending indigenous peoples’ rights.

We heard of an interesting initiative in Chile, where the Ministry of Agriculture has a Civil Society Council within it. This is apparently a standard practice in other departments in Chile as well – one with great promise to ensure grassroots voices are not left out of important decision-making processes.

Our delegate Alimata asserted that ‘we as farmers say that these rights that belong to farmers are collective and community rights. So IP rights – UPOV – this belongs to the private sphere, it can’t pertain to farmers’ rights. As far as biodiversity is concerned, we feel that it is best preserved out in the field, where farmers breed, renew, and adapt them to their environment. We’re all aware of the effects of climate change, and that biodiversity allows plants to adapt. Farmers cannot grow crops without the rights to grow, save, sow, and sell seed. The best practices also include culinary practices – we’ve lost this love of taste – improved seeds also mean that we’ve lost touch with many things that were useful.’

Alimata further noted how strange it was that there were so many discussions of how to implement farmers’ rights in the synthesis report provided, while the voices of farmers were so few. This was a point I also raised in my initial IPC report on our regional consultations in Asia, Africa, and Latin America, where I suggested that a room full of men making decisions about womens’ rights would be considered an outrage by most reasonable people these days, and yet here we were in a room full of bureaucrats and a handful of farmers who were mostly present as silent observers – we were not even permitted to speak as they deliberated on whether or how to implement our rights.

The delegate from the US addressed the author of the synthesis report to say, ‘if we’re pitting farmers’ rights against increased yield and farmer incomes then we have a real problem – can you clarify?’ Her response was that farmers’ rights are inhibited because of the focus on increased yield & profit.

Protection of Traditional Knowledge

There was discussion from the more sympathetic delegates that supported farmers’ rights – notably Ecuador, Iran, and Malawi frequently spoke in support of farmers. Iran noted that in many traditional communities, farming is a way of life, not just an income. For example, he shared that ‘there are certain seeds offered to the gods, not just planted, so culture is really important… but that in the meeting we seemed to be just talking about farmers’ rights as economic rights… the right to exchange, maintain seed is a part of heritage.’

Italy backed this position up by asking, ‘What does protection of traditional knowledge mean? Knowledge is reduced to a tradeable object.’ He argued that it is a struggle over meanings and values, and suggested the language move ‘from biopiracy to bioprivateering. – you are not only stealing, you are changing the way of life of the people you steal from.’ He summed up by asserting that the classical view of seeing protection of traditional knowledge only through IP Rights is a colonizing discourse.

A discussion around the issue of misappropriation highlighted some of the key conflicts – on one hand, peasants and indigenous peoples don’t want their traditional knowledge misappropriated for the profit of others, but on the other if knowledge isn’t shared it might become extinguished. Italy responded by noting that there are two ways to protect traditional knowledge – either by just protecting the object, or by protecting the subject – the people who are the holders of the knowledge. The ISF told us she ‘didn’t like’ the word ‘misappropriation’, and the US shared her discomfort with the term.

Which Farmers Should the Treaty Protect?

The IPC suggested that only farmers who contribute to the conservation and renewal of the diversity of plant genetic resources for food and agriculture own these rights. Farmers who simply buy new commercial seeds every year do not contribute to the conservation of PGRFA. They are subject to seed marketing laws and any intellectual property rights that protect them.

Farmers who use their own farm seeds from commercial seed cultivation adapt them to their terroir and their cultivation method. They select the best adaptation traits in their fields and thus contribute to improve the diversity of PGRFA. They therefore own the Farmers’ Rights.

Farmers who select, breed and conserve their own seed from traditional local varieties or PGRFA from the Multilateral System of the Treaty all contribute to the conservation of PGRFA. They are therefore all holders of the Farmers’ Rights and they are not subject to the seed trade laws or Intellectual Property Rights if they are an obstacle to Farmers’ Rights.

In India, where much work has been done by peasants and activists such as the legendary Vandana Shiva, farmers can save, use, sow, re-sow, exchange, share, or sell farm produce including seed of a variety protected under the Act. Farmers cannot sell branded seed of a protected variety, but they are protected by the ‘Innocent infringement’.

Alimata pointed out that there are frameworks and rules that limit farmers’ rights at all levels, for example:

limitations in relation to the marketing of seeds (e.g. mandatory registration);

dematerialization of genetic resources and patents on digital sequences of information on genetic resources; and

phytosanitary rules.

These frameworks and rules have been created for the industrial seed system and apply to it. However, the industrial seed system is not covered by Article 9 of the Treaty, and so the creation of specific and autonomous legal frameworks that apply to peasant seed systems is a key measure to guarantee the rights of peasants to save, use, exchange and sell seeds.

From the beginning, ISF pushed to ensure the Seed Treaty is ‘mutually supportive with other instruments’ – by which she meant that recognizing farmers’ rights should not be at the expense of ensuring plant breeders’ rights to their IP (as assured for those 75 countries that are members of UPOV), which inherently restricts other farmers’ right to seed.

A delegate from the US suggested that the group limit the scope of these discussions by taking part 9.1 off the agenda. 9.1 states that ‘The Contracting Parties recognize the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world.’ So America wanted to strike simple recognition of peasants and indigenous peoples from the group’s consideration.

The Politics of Recording History

Quite literally one entire day of four was taken up with a very lengthy discussion on the structure of the table that would be created to collect the national measures in place or in the process of implementation to support farmers’ rights. At first it seemed like either serious mismanagement of the process or a distraction, but in fact, there was a lot at stake. The initial proposal included a column to identify which part of Article 9 a national measure was addressing, and the colonialists didn’t like this level of specificity which might keep them from more general measures that do not in fact directly support farmers’ rights.

The true, hidden debate was exposed in the final discussion on the adoption of the report of this first meeting. The US proposed inclusion of a line that said ‘the inventory [of national measures] is not producing new obligations on [national governments]’. Ecuador, Malawi and Iran spoke in opposition to this line, noting that a) an inventory of course does not produce new obligations – it’s meant as a guide to support the creation of more such measures; and b) they already have obligations under Article 9 as signatories to the Seed Treaty.

In a fascinating case of a bureaucrat losing his cool, the US held his line – ‘I was collaborative in nature, I conceded a point earlier in the spirit of collaboration because I just wanted this sentence. I will hold steadfast to this.’ He pointed out the column he didn’t want in the template that will refer to which part of the Article the measure addresses. ‘We all agree it’s non-controversial, that the inventory doesn’t create new obligations, so why can’t I have this sentence?’ In his steadfastness, he revealed his bias to reject as much language as possible that might hold his government accountable for genuinely supporting farmers’ rights. Canada, Australia, and the ISF all supported the US’s position. The US suggested the deletion of the offending column ‘relevance to the provision in Article 9’ and then he would let the sentence go. Ecuador and Malawi conceded as Switzerland blew neutral raspberries directly to my right.

One of the most egregious efforts from the colonialists was a request from Canada to remove paragraph 11 from the report on the meeting – the paragraph in which the IPC was acknowledged as having delivered a report on civil society’s regional consultations. The US supported Canada’s proposal. The half dozen farmers in the room who were there as silent observers were in shock – not only were we there to silently listen as the colonialists and corporations negotiated to limit our rights at a meeting ostensibly intended to support implementation of our rights, they now wanted to erase us from the record.

Ecuador, the only country in the world with a food sovereignty act, passionately defended the inclusion and recognition of all the work that went into the IPC regional consultations with farmers. Italy and Iran supported Ecuador, and of course Alimata supported the inclusion of our report as well. One of our farmers present quietly informed us that he saw the delegate from UPOV suggest the edit to the colonialists in the lunchroom.

The paragraph that recorded our participation remained in the report. It was small victory in the face of intense global domination by corporations. Had we not been present to defend ourselves, we would have been erased from the history books, as peasants have been for time immemorial. But we’re getting ever more organized, and collectivized… and we will not be silent.